1. Do the sentencing guidelines for trafficking in actual dangerous drugs apply to an offence of trafficking in a purported dangerous drug?
No, the same sentencing guidelines do not apply to trafficking in a purported dangerous drug under section 4A of the Dangerous Drugs Ordinance (Cap. 134), which is treated as a distinct and less serious offence than actual trafficking under section 4(1)(c).
Section 4A, introduced in 1990, targets the sale of substances purported to be dangerous drugs and carries a maximum penalty of 7 years' imprisonment, indicating legislative intent for custodial sentences but well below the maximum life sentence for section 4 offences. Courts draw a clear distinction between an accused who genuinely believes they are selling real dangerous drugs, contrary to section 4(1)(c), and one who knowingly sells fakes, which constitutes the section 4A offence (see HKSAR v Li Oi-yee). The former is manifestly more serious.
HKSAR v Cheng Ling-ling illustrates this for section 4(1)(c), which concerns the trafficking of purported drugs which the defendant believed to be real. The court granted a discount in recognition of the “no harm” factor, as fake substances caused no actual public damage.
Print
Email
